2. SAME-DEMAND FOR JUDGMENT. In an action at law a discovery is allowable in order to enable plaintiff to ascertain the amount for which he should demand judgment. (Syllabus by the Court.) Appeal from special term. Action by Nathaniel Hofman against Alfred M. Seixas. From an order granting an inspection of books, defendant appeals. firmed. Argued before BISCHOFF, PRYOR, and GIEGERICH, JJ. Af PRYOR, J. Upon an agreement entitling him to a percentage on purchases by the defendant the plaintiff sues to recover the amount so due him; and as he "has no means of knowing what purchases were made by the defendant, and so is unable to state the amount to which he is entitled," the plaintiff, in order to an appropriate prayer for relief, moved for "an inspection of all books, documents, and other papers relating to the merits of this action," in the possession or under the control of the defendant. In compliance with the motion, the defendant was directed to deposit with his attorneys, and permit the plaintiff to inspect, "his ledger and sales book, containing entries in reference" to the purchases by defendant. On appeal from such order the defendant impugns its validity on several grounds. First it is objected that "the petition does not state facts sufficient to warrant the order," because, since by subdivision 3, § 481, of the Code the demand for judgment may be for any sum "to which the plaintiff supposes himself entitled," it is not necessary that he name the exact amount of the recovery. In Veiller v. Oppenheim (Sup.) 26 N. Y. Supp. 1051, 1053, Judge O'Brien, with the concurrence of Van Brunt, P. J., and Follett, J., exploded a little criticism thus: "In an action at law it will be necessary for the plaintiff to state the amount which he seeks to recover, and, unless such amount can be ascertained from an inspection of the books, plaintiff will not be in a position to know just what sum he is entitled to sue for." Again, defendant objects that it is not apparent that the plaintiff "has exhausted all means of information at his command." Nevertheless it is the fact that he explored without result the one source of intelligence open to him, and how futile would have been an application to the defendant is sufficiently evinced by the stubborn resistance to the present motion. Again, it is urged that the order is invalid, because "neither the petition nor the notice of motion specifies the particular books or documents which the plaintiff desires to examine." But the order designates the ledger and sales book, so that the exorbitant demand in the notice of motion is denied, the generality of the moving papers is reduced to a particular by the order, and nothing more is exacted of the defendant than would have been allowable had plaintiff's papers been technically precise. Still again, defendant objects that "the petition is not verified in accordance with the rule of court," but wherein it is defective the brief does not apprise us. Rule 15 merely requires that "the moving papers be verified by affidavit," and plaintiff's petition is authenticated by just such a verification. Finally, the defendant complains "that the application is not made in good faith, but is a pure and simple fishing excursion." "Bad faith" and "fishing excursion" is the uniform answer to applications for discovery, and, were the answer sufficient, the relief would be unattainable. The petition to which defendant refers us for proof of his imputation suggests to us no suspicion of sinister motive in the application. If the adjudication in Veiller v. Oppenheim, supra, be not conclusive as authority upon this appeal, the opinions of Barrett and O'Brien, JJ., are convincing as argument. affirmed, with costs and disbursements. All concur. Order (12 Misc. Rep. 17.) HARDEGG v. WILLARDS. (Common Pleas of New York City and County, General Term. April 1, 1895.) 1. BAILMENT-CONSIDERATION-RECIPROCAL BENEFITS. A reciprocal benefit between bailor and bailee, from the deposit of the former's picture in the latter's gallery, is a sufficient consideration to raise a duty and support a promise of care in the custody of the picture. 2. MASTER AND SERVANT-NEGLIGENCE-UNAUTHORIZED ACTS. It is no answer to an action against a master for an injury by his servant, in performing an act for the benefit of the master, that the servant's duties were in another department of the business, and he did the act without the express authority or direction of the master. (Syllabus by the Court.) Appeal from district court. Action by Frederick Hardegg against Willards, a corporation, for injury to a picture. A judgment was rendered in favor of plaintiff, and defendant appeals. Affirmed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Thomas C. Ennever, for appellant. Charles W. Coleman, for respondent. PRYOR, J. The judgment for the plaintiff must be taken as resolving all controverted questions of fact in his favor. Sutter v. Vanderver, 122 N. Y. 652, 654, 25 N. E. 907. Upon appeal from a district court, we will not, except in case of clear injustice, review and readjust the weight of evidence. Patterson, etc., Co. v. Lichtenstein Bros. Co., 9 Misc. Rep. 126, 29 N. Y. Supp. 279; Lynes v. Hickery, 4 Misc. Rep. 522, 24 N. Y. Supp. 731. It is idle, then, to argue that the deposit of the picture with the defendant was upon a gratuitous bailment, for the evidence shows a reciprocal benefit to the parties, in a mutual advantage from the exhibition of the picture in the defendant's gallery. Nay, more; in return for the privilege of such exhibition, the plaintiff promised to procure orders for the defendant, and to forego his commission. Being thus a bailee for reward, the law implies on the part of the defendant an undertak ing of diligence; and, indeed, such was its express engagement. It is unnecessary, therefore, to follow counsel in their interesting discussion as to the responsibilities of a mere depository. In this case the bailment was of the class, locatio operis faciendi, and the duty of the defendant was to observe ordinary care in the safe custody of the picture. The question then is, did the defendant discharge that duty? In other words, is the defendant chargeable with ordinary negligence? Clearly, such negligence may not be imputed to the defendant for merely putting the picture in a showcase. The plaintiff assented to its being so placed, and himself says it was a safe repository. The injury to the picture was by the act of a boy, in dusting it,-a duty incumbent on the master, and essential to the security of the picture. The boy was a servant of the defendant, but as his employment was in the manufacturing, and not in the exhibition, room of the defendant's building, and as it was neither his duty nor direction to dust the picture, the defendant contends that it is not responsible for his act. The general rule is that liability attaches to a master only for such acts of the servant as are committed in the execution and within the scope of his employment. But, adds an author of high repute, a master "cannot limit his responsibility for any particular servant by employing him only with reference to a single branch of the business. If a servant, under such limited employment, nevertheless undertakes to serve his master in any other matter connected with the general business, and the limitation is not known to the person with whom he deals, the master is responsible for the acts of such a servant, in such matters, as much as for those of any other servants engaged in the business." 1 Shear. & R. Neg. § 146. Accordingly, where a laborer in the hardware department of a blacksmith's shop, without the authority or direction of the master, undertook to shoe a horse,— another and different employment,-it was adjudged that the master was responsible for an injury to the horse from the want of care and skill of such officious intermeddler. Leviness v. Post, 6 Daly, 321. The picture was in the custody and care of the defendant. The injury was done by defendant's servant. It is not apparent that the defendant took any precaution to prevent the injury. Hence, defendant's liability is a necessary conclusion. At all events, coupling the improbability of the story that the boy undertook the labor of cleaning the picture without direction or authority with the interest of the witness (defendant's manager) in the event of the litigation, the scope of the boy's employment was a question for determination by the trial justice. Volkmer v. Railroad Co., 134 N. Y. 418, 31 N. E. 870; Nicholson v. Conner, 8 Daly, 212; Courtney v. Baker, 60 N. Y. 1. Upon still another ground the judgment may be upheld. When plaintiff was hesitating, because of the delicacy and value of the picture, to place it with the defendant, his reluctance was persuaded by an express pledge of responsibility on the part of the defendant. And after the destruction of the picture he was again assured that "the firm is responsible, and you will get paid for it." Happily for the interests of justice, the defendant's escape from liability is no more consistent with law than with morals. The exception to evidence of the value of the picture is untenable. In the absence of a market price, the proof was clearly competent. Judgment affirmed, with costs. All concur. (12 Misc. Rep. 96.) KRANICHFELT v. SLATTERY. (Common Pleas of New York City and County, General Term. April 1, 1895.) 1. DECLARATIONS-NOTARY PUBLIC-IMPEACHING CERTIFICATE. Oral declarations out of court by a notary public whose testimony can be had are not admissible to impeach his certificate, but are only admissible to impeach his testimony where he has testified in support of his certificate. 2. BONDS-PROOF OF DELIVERY-POSSESSION. Possession of a bond by the obligee is prima facie evidence of delivery. Appeal from city court, general term. Action by Charles Kranichfelt against John Slattery. From a judgment of the city court (29 N. Y. Supp. 687) affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. F. P. Trautmann, for respondent. DALY, C. J. The action was brought upon a bond alleged to have been executed by the defendant, as surety for the performance by one Lynch of his contract with plaintiff to excavate the latter's lot on Audubon avenue of rock and earth, and to remove from adjoining premises some of said rock and earth, which had been placed thereon by Lynch, and also to do the mason work for new buildings on the plaintiff's lot. The defense was a denial of the execu tion of the bond sued upon, and the question tried before the jury was whether the signature to the bond was defendant's signature, or was a forgery. The execution and delivery of the bond were proved by its production by the plaintiff and a certificate of acknowledg ment by a notary public, Charles W. Pinckney, of New York county, attached thereto, to the effect that on the 8th day of April, 1892, John Slattery, known to him to be the individual mentioned in and who executed the instrument, appeared before him, and duly acknowledged that he executed the same. The defendant called the notary as a witness, and showed by him that he did not personally know the party making the acknowledgment in question, who was brought to his office by Lynch, and identified by the latter; and the defendant was sworn on his own behalf, and testified that he never signed nor acknowledged the bond. The defendant was then allowed, under plaintiff's objection, to testify that some 16 months subsequent to the date of the certificate he called upon the notary, in company with a Mr. Walker, and that the notary stated to them that he did not know the defendant, and had never seen him until that time, and that defendant had never appeared before him. Walker's testimony to the same effect was also admitted, under plaintiff's objection; but, at the close of the examination of that witness, the court, on motion of plaintiff, struck out the testimony of Walker and of the defendant in regard to their interview with the notary. The defendant excepted to the granting of the motion. The certificate of a notary of the acknowledgment of an instrument is not conclusive, and may be rebutted, and the effect thereof may be contested by a party affected thereby. Code, §§ 935-937. But the certificate cannot be rebutted by proof of oral declarations of the notary, who is living, and whose testimony can be had; such declarations not being made in the course of his official duty, but long after the certificate was executed. They are mere hearsay, and inadmissible. 1 Phil. Ev. 349, 350 (Cowen & H. notes); 1 Greenl. Ev. 123-126. His declarations would be admissible to impeach his testimony if he affirmed the truth of the certificate when testifying as a witness. In such case it would be proper, as affecting his credibility, to prove that he had made statements to the contrary. Id. 462. But the notary, who was called as a witness, did not affirm the truth of his certificate, but in fact denied it; testifying that he did not know the defendant, and took the acknowledgment of a stranger who was introduced to him by Lynch. The defendant, therefore, had direct, competent evidence from the notary, and in his own examination, to rebut the certificate, and there was no necessity for introducing the notary's declarations out of court. No confirmation of the latter's testimony was needed, for it was not disputed; and, if it had been, proof that the witness had made similar statements at another time would not be admissible in corroboration of his testimony, under any known rule of evidence. The case differs from that of a witness charged with a fabrication of a story for the purposes of a trial, in which case previous declarations to the same purpose, made when there was no suspicion of influence or interest, may be shown. Baber v. Railroad Co., 9 Misc. Rep. 20, 29 N. Y. Supp. 40. The evidence, therefore, was improperly admitted, and plaintiff, having objected in time, was entitled to have it struck out. Defendant, having thus offered incompetent evidence, cannot reasonably complain of the effect upon the jury of having it struck out; but there is no reasonable ground for the apprehension that the jury were misled by the elimination of the incompetent evidence into supposing that the certificate of the notary remained unimpeached. No intimation of such a ruling appears in the case, and defendant could have guarded against a wrong impression by asking for appropriate instructions. In the absence of the judge's charge from the case, we are to assume that the issues were fairly submitted upon the evidence, and that the effect of the evidence was fairly and fully stated. Upon the whole case, there was evidence to sustain the verdict, and to satisfy the requirement of law imposing upon plaintiff the burden of proving the execution and delivery of the bond. Although the effect of the notary's certifi cate had been destroyed by the notary's evidence that he did not know the party making the acknowledgment, there was competent evidence of the execution of the bond. The bookkeeper of the Mur |